The following is a guest post by Nicholas Bagley, University of Michigan Assistant Professor of Law.
Over at Forbes, Avik Roy is crowing about an unpublished government report documenting that the Obama administration has missed about half of the statutory deadlines included in the Affordable Care Act (ACA). As Avik would have it, these missed deadlines “reflect on the administration’s competence” and demonstrate its “flakiness.” Is he right about that?
Nope. To see why, suppose for the moment that you’ve offered to go grocery shopping for your demanding, geriatric grandmother. She gives you a list of fifty things to buy, some of which she’ll use for dinner tonight and some of which she’ll cook up later. She gives you a crisp $10 bill to pay for it all. And she tells you to get back in twenty minutes so you can drive her to her bridge game.
Obviously, you can’t manage it all. So what do you do instead? To borrow a medical term, you triage. You rush to Safeway. You grab the food for tonight’s dinner. You get less steak than grandma wants, and a cheaper cut. When the groceries still cost $10.34, you scrounge some coins from your car. You hustle back twenty-five minutes later.
What do you think? Are you incompetent? Flaky? Not a bit. No matter how attentive and diligent a grandchild you might be, you couldn’t possibly have done everything you were asked to do. So yeah, you got back five minutes late. But grandma’s going to eat tonight and she won’t be all that late to bridge. That ain’t bad.
Congress is kind of like your difficult grandmother. All too often, it imposes lots of obligations on federal agencies and then doesn’t give them the money, legal authority, and time to fulfill those obligations. That’s not a new story, but it’s a story with particular resonance for the ACA. The statute is massive: it restructures the individual and small-group markets for health insurance, creates dozens of new government programs, transforms and expands Medicaid, tries to get a handle on Medicare spending, and so on and so forth. Implementing the ACA would be no mean feat under the best of circumstances. But these aren’t the best of circumstances. Congress has starved the administration—most importantly, the Department of Health and Human Services (HHS)—of the resources it needs to implement the statute.
So what’s HHS supposed to do? Well, the most important thing is to make sure the statute works like Congress meant it to. Some of the ACA’s most important operative provisions, for example, can’t go into effect until HHS issues rules to implement them. The effective dates for these provisions therefore serve as unusually strict deadlines, and HHS has worked its tail off to hit them. We’ve got rules about essential health benefits, rules about the exchanges, rules about the individual mandate, and rules about a whole lot more. What does the report that Avik draws attention to say about all of this? Not a word. It altogether excludes from consideration those provisions “that merely had an ‘effective’ date attached to them, as opposed to a specific deadline.” That’s another way of saying that the report doesn’t cover the deadlines that matter most.
But what about the “specific” deadlines covered in the report? Doesn’t Congress care about them, too? Sure. So does HHS. In general, the agency is much more attentive to deadlines than its sister agencies. But here’s the thing: some deadlines are more important than others. When HHS can’t possibly do everything that Congress has asked of it, it has to set priorities. It’s totally appropriate for the agency to devote its scarce resources to, say, getting the exchanges up and running, even if that means blowing through a deadline for submitting a report to Congress about wellness programs.
That’s why the missed deadlines don’t remotely suggest that the administration is inept or incompetent. Agencies miss deadlines all the time, sometimes for good reasons and sometimes not. For all this report tells us, HHS is doing exactly what we’d want a faithful congressional agent to do: muddling through as best as it can under trying circumstances. After all, it’s nutty to think that HHS’s most important priority right now is to hit every single deadline in the ACA, however inconsequential or unrealistic. If you doubt it, just think back to your grandma. Better that she’s five minutes late than hungry.